Allahabad High Court
Dr. A.P.J. Abdul Kalam Technical ... vs Ajay Kumar Garg Engineering ... on 18 January, 2023
Bench: Ramesh Sinha, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 1
Case :- SPECIAL APPEAL No. - 20 of 2023
Appellant :- Dr. A.P.J. Abdul Kalam Technical University Thru. Its Registrar Lko. And Another
Respondent :- Ajay Kumar Garg Engineering College, Ghaziabad Thru. Director Dr. P.K. Chopra And Others
Counsel for Appellant :- Utsav Mishra
Counsel for Respondent :- Amit Jaiswal Ojus Law,A.S.G.I.,C.S.C.,Lalit Shukla
Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
(1) This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules arises out of the order dated 20.12.2022 passed by the learned Single Judge in Writ-C No. 9310 of 2022 : Ajay Kumar Garg Engineering College Vs. Union of India and others, whereby the learned Single Judge has extended the interim relief dated 20.12.2022 passed in Writ-C No. 8770 of 2022, by which the writ petitioner is permitted to register/admit the students under 10% E.W.S. quota in accordance with the procedure prescribed by the University, in favour of writ petitioner/respondent no.1 herein also.
(2) Heard Shri Utsav Mishra, learned Counsel for the appellant, Shri Digvijay Nath Dubey, learned Counsel for the respondent no.1/writ petitioner, Shri S.B. Pandey, learned Assistant Solicitor General of India assisted by Shri Raj Kumar Singh for the respondent no.2/Union of India, Shri Indrajeet Shukla, learned Additional Chief Standing Counsel for respondent no.2/State and Shri Lalit Shukla, learned Counsel for the respondent no.4/AICTE.
(3) Learned Counsel for the appellant has contended that against the interim order dated 20.12.2022 passed in Writ-C No. 8770 of 2022, benefit of which has been extended to the respondent no.1/writ petitioner by means of the impugned order, Special Appeal No. 6 of 2023 : Dr. A.P.J. Abdul Kalam Technical University and another Vs. G.L. Bajaj Institute and Management, Gautam Budh Nagar and others, has been filed by the appellants/University before this Court and this Court, vide order dated 06.01.2023, while allowing the said special appeal partly, quashed/modified the order dated 20.12.2022 passed in Writ-C No. 8770 of 2022 to the extent as far as it permits the respondent no.1/writ petitioner to admit/register the students under 10% EWS quota and further remitted the matter to the learned Single Judge with a request to decide it preferably within three weeks from the first date of listing. His submission is that as the issue involved in the instant special appeal and Special Appeal No. 6 of 2023 is identical, therefore, benefit of the judgment and order dated 06.01.2023 passed in Special Appeal No. 6 of 2023 may also be extended to the appellant.
(4) Learned Counsel for the respondents does not dispute the aforesaid facts.
(5) Having heard learned Counsel for the parties and gone through the impugned judgment as well as material brought on record, it is required to be noted here that impugned interim order passed by the learned Single Judge says that interim relief so granted by the learned Single Judge vide order dated 20.12.2022 passed in Writ-C No. 8770 of 2022 shall also be extended to the writ petitioner in the petition.
(6) Undisputedly, the said order dated 20.12.2022 passed in Writ-C No. 8770 of 2022 has been challenged in Special Appeal No. 6 of 2023, which was partly allowed vide judgment and order dated 06.01.2023. The relevant part of the judgment and order dated 06.01.2023 is reproduced as under :-
"11. After hearing learned counsel for the parties and going through the record of the case, the position which emerges out in the present case is that the issues involved in the writ petition are as to whether the A.I.C.T.E. is empowered to determine the seats as per the Amendment Act, 2019 and whether the State Government or the Central Government is competent to issue an order/notification as per the Amendment Act, 2019 are yet to be adjudicated by the writ court, thus, when the disputes are yet to be adjudicated and the determination of the seats are still sub-judice in the writ petition, any admission made against the increased seats is nothing but to play with the career of the students.
12. The Hon'ble Supreme Court in the case of Dental Council of India vs. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli and Ors. [(2017) 13 SCC 115] in paragraph 11 has held as under:-
" 11. True it is, the High Court has qualified its order by stating that the admission process shall be at the risk of the college and the students shall be intimated, but the heart of the matter is, whether the High Court should have stayed the order with such conditions. Basically, the order amounts to granting permission for the admission of students in certain courses in a college which had not received approval. There may be a case where the court may ultimately come to the conclusion that the recommendation is unacceptable and eventually the decision of disapproval by the Government of India is unsustainable. But the issue is whether before arriving at such conclusions, should the High Court, by way of interim measure, pass such an order."
13. The Hon'ble Supreme Court in the case of Medical Council of India vs. Kalinga Institute of Medical Sciences (KIMS) and Ors. [(2016) 11 SCC 530] in paragraph 27 has held has under:-
"27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-2015 [Kalinga Institute of Medical Sciences v. Union of India, WP (C) No. 15685 of 2015, order dated 25-9-2015 (Ori)] . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved ? what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty."
14. The parity as claimed by learned counsel for the respondent-petitioner institution cannot be accepted as no negative parity could be given as per the law settled by Hon'ble Supreme Court in the case of R. Muthukumar and Ors. vs. Chairman and Managing Director TANGEDGO [(2022) SCC Online SC 151].
15. While passing the order impugned, the learned Single Judge has only considered the fact that the Hon'ble Supreme Court has fixed the cut-off date i.e. 20.12.2022 for permitting the respondent-institution to admit/register the students but the law propounded by the Hon'ble Supreme Court in the catena of judgments wherein it has been held that in the matter of admission, where the career of the students are involved, the Courts should ordinarily decline to grant interim relief and hear the petitions finally, has been ignored.
16. In view of the discussion made hereinabove, the Special Appeal is partly allowed.
17. The impugned order dated 20.12.2022 is hereby modified/quashed to the extent as far as it permits the respondent No.1-petitioner to admit/register the students under 10% EWS quota.
18. Let the matter be remitted to the learned Single Judge with a request to decide the matter preferably within three weeks from the first date of listing."
(7) In view of the aforesaid, instant special appeal is partly allowed in terms of the judgment and order dated 06.01.2023 passed in Special Appeal No. 6 of 2023 : Dr. A.P.J. Abdul Kalam Technical University and another Vs. G.L. Bajaj Institute of Technology and Management, Gautam Budh Nagar and others and following order in terms of the aforesaid order dated 06.01.2023 is passed :-
"The impugned order dated 20.12.2022 passed in Writ-C No. 9310 of 2022, is hereby set-aside/ modified to the extent as far as it permits the respondent no.1/writ petitioner to admit/ register the students under 10% EWS quota.
Let the matter be remitted to the learned Single Judge with a request to decide it, expeditiously, preferably within three weeks from the first date of listing."
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)
Order Date :- 18.1.2023
Ajit/-
